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The Supreme Court of Canada stood tall on Wednesday. It rightly decided that the original decision by a Saskatchewan human rights tribunal against homophobic William Whatcott was in fact constitutional.

This decision has more than just an impact on Whatcott. Despite rumblings that this latest iteration of our highest court may use the Whatcott case to strike down our hate laws entirely, in fact the exact opposite occurred. In upholding Section 14 of the Saskatchewan Human Rights Act, the Supreme Court has reinforced our country’s commitment in law to ensuring that the fence of protection for minorities in this country remains solid against the winds of hatred.

Whatcott, formerly a gay prostitute turned homophobic crusader against gays and lesbians, was brought before a Saskatchewan human rights tribunal in 2002 for a series of hate-filled pamphlets attacking the gay community. He was found to be in violation of the act and was fined $17,500 for disregarding the tribunal order to cease and desist. The Supreme Court trimmed back the fine from $17,500 to $7,500.

While the Supreme Court quite correctly struck down some language contained within Saskatchewan legislation that had too limiting an effect on free speech, there was an irony here as well. In its 6-0 unanimous decision it told the Saskatchewan Human Rights Commission to basically bring its law more into line with the Canadian Human Rights Act, Section 13 — the very same legislation that was recently repealed by the federal government and is presently before the Senate where it’s surprisingly being questioned. This decision, which in effect upholds the constitutionality of Section 13, may have a sobering effect on the Senate’s deliberations.

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In this decision, the Supreme Court went so far as to confirm that hate speech has a divisive impact on society. It also emphasized the added sway played by our digital age of social media and the Internet, exactly what Section 13 of the federal act addresses. The court suggests, therefore, that anti-hate laws must serve as a tool in fighting those who would knowingly vilify vulnerable groups.

The former president of Canadian Jewish Congress (full disclosure: I was its CEO when we decided to intervene on this case) Mark Freiman, who represented CJC on this matter before the court, explained:

“I think because the debate tends to focus on what group is being maligned, we sometimes don’t actually think through what the implications are. That’s why the court is always very careful to separate the principle from any political debate. What’s involved is not a political debate, what’s involved is an attack on people based on the fact that they are members of a group. It’s not just stereotyping, but it’s demonization.”

Even Chief Justice Beverly McLachlin, who in the last test of our hate laws in 1990 dealing with James Keegstra and John Ross Taylor wrote the minority opinion representing four of the nine justices, this time sided with the majority.

The court also put to rest some speculation that it may uphold a defence that a “sincerely held belief” should be a proper justification for hate speech. In fact, the decision noted strongly such a defence would basically preclude any finding of guilt. As explained in the ruling:

“Allowing the dissemination of hate speech to be excused by a sincerely held belief would, in effect, provide an absolute defence and would gut the prohibition of effectiveness.”

Canada’s hate laws have been a matter of passionate debate over the last 30 years. Many suggest that democratic societies ought never to limit speech and if they do so, only in the most egregious of circumstances where life is at stake. Yet almost every western-style democracy has instituted laws to protect its minorities from hate and vilification. Canada is in good company with the United Kingdom, Australia, Holland, Denmark, France and many others. Indeed, only the United States has a constitutional prohibition permitting hate speech while its civil libel laws remain among the most onerous in the legal world.

In the end, Canadian law has opted to stand with the most vulnerable in society. By so doing it has taken a strong stand against hate-mongers and bullies. We should be proud of a court that supports the victim against the victimizer.

Bernie M. Farber, formerly CEO of Canadian Jewish Congress has been recognized by the courts as an expert in hate crime. Today he is senior vice-president with Gemini Power Corp working with First Nations on sustainable industries.

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